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Marital Property 101

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Marital property is defined under state law.  The principles of which spouse owns which property are primarily determined by whether the spouses live in a common law property or a community property state.

Common Law Property State

The vast majority of states follow common law property principles.  These states presume that property earned or acquired during the marriage is marital property.  There are several exceptions.  For example, if the parties enter into a valid prenuptial or postnuptial agreement, this default rule does not apply.  Additionally, property owned before the marriage, received as a gift or inheritance, personal injury awards, property acquired by one spouse by using only separate property with the intent to keep it separate and property acquired during the marriage by one spouse that is deeded in only one name and not used for the benefit of the marriage are usually considered separate property.   Upon divorce, the court can consider a number of factors to determine how to equitably, but not necessarily evenly, divide the marital property.

Community Property States

The remainder of states uses the community property system.  This system is based on the idea that all assets acquired or earned during the marriage are community property to which each spouse owns 50/50.  Marital property in these states includes income, property bought with the earnings of the marriage and debts incurred during the marriage.  Property acquired prior to the marriage is considered separate property.  Gifts or inheritances to one spouse are usually considered separate property.

Personal injury awards provided to a spouse in a community property state are usually considered community property, but they are considered separate property during the divorce.  Courts usually divide the property 50/50 in the event of divorce.  There are exceptions to this general rule, such as if one spouse misappropriated community property.

Background on Fathers’ Rights

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For many years, fathers were relegated to the role of only being breadwinners with little attention given to any emotional comfort that they could provide their child.  Mothers were considered the natural caretaker and a father receiving greater parental rights over a mother was an uncommon occurrence unless there was extreme misconduct on the mother’s part.

However, after much research on the impact of losing a relationship with either parent, courts and legislators have modified their approach.  These establishments now recognize the importance that fathers play in their children’s lives and the impact that they have as role models, especially as same-sex role models.

This shift has caused states to pass laws that state that a preference will not be given to either parent because of their gender.  Additionally, many states have passed laws that have a presumption that joint custody shall be presumed to be in the best interest of the child in the event of divorce.

The desire for men to be more than just a paycheck has led to multiple organizations and law firms that focus only on fathers’ rights.  These entities have provided support for the Fathers’ Rights Movement, which supports fathers having as much time with their children as possible, the establishment of laws to support fathers’ rights and the establishment of processes to encourage this ongoing relationship.

Fathers’ rights organizations also help explain the rights that fathers have and how to trigger these rights.  In many locations, an unwed father must petition the court to establish his paternity in order to be recognized as a legal parent.  Additionally, many states offer a registry in which a father can ensure that he is associated with a particular child so that if the child is ever placed for adoption, he will receive notification and the ability to contest the process.

When Guardianship May Be Ordered

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When referring to minors, guardianship is usually the process involved when a person who is not a parent of a minor takes over parenting responsibilities.  In essence, the court gives custody of the minor child to an adult relative, caregiver or other individual.  This term is also used to refer to someone who takes over the property of a minor child.

In some circumstances, guardianship appointments arise because of a catastrophe.  Both of the parents may have died in an accident or a single parent’s health may have declined to the extent that he or she can no longer care for the child.  Similarly, if a parent is deployed overseas and cannot take the child with him or her, a guardianship may be considered.

In other cases, guardianship may become necessary after the child was abandoned.  A parent may be unfit to raise the child at the current point in time due to financial, emotional, mental or other issues.  The parent may be suffering from substance abuse and may need to be treated at a rehabilitation center.  The parent may also be facing impending incarceration.

When making a determination regarding whether guardianship should be appointed, the family court judge may review the evidence.  The standard that the judge usually uses is to determine what is in the best interests of the child.  Each state has different factors that the court may consider, such as a history of abuse, a history of substance abuse, the child’s preferences if he or she is old enough or is able to understand and explain his or her wishes, the experiences of the potential guardian, the relationship between the potential guardian and the child and whether the child would suffer harm from being removed from his or her home in order to be placed with the guardian.

Aspects of a Paternity Action

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Studies show that more than one-half of children with mothers under the age of 30 are born out of wedlock.  While many states have laws that provide that spouses have equal rights to the children born of the marriage, this is often not the case for unmarried parents.  Instead, a father may need to file a paternity action in order to start the legal process of identifying him as the child’s biological father and establishing his rights to access to the child.  Similarly, a mother may wish to file a paternity action in order to establish the father’s obligation to financially support the child.

Child Support

Once paternity has been declared under a court order, child support may be figured based on the relevant child support formula in the jurisdiction where the child resides.  There may be factors that the court considers to adjust the amount of support up or down.

Child Visitation and Child Custody

Most states treat the obligation to financially support the child separate from the right to have access to the child through visitation or custody.  One parent may petition the court for child visitation or child custody.  The courts often consider legal custody and primary physical custody separately with legal custody being the right to make important decisions regarding the child.

Parenting Plan

Many jurisdictions encourage or require parents to draft a parenting plan in which the arrangements regarding a child are clearly laid out.  Parenting plans may include information about how holidays will be shared, how decisions regarding the child will be made, how information about the child will be shared and how other parenting issues will be resolved.  Parenting plans are often completed in a cooperative manner through the process of mediation, which may be a voluntary act by the parties or ordered by the court.

Anatomy of a Title Insurance Case in Mediation

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People purchase title insurance to ensure that they receive all of the legal benefits to which they are entitled by purchasing real property. However, legal threats may arise if a problem is later discovered with the title. Once the parties agree to mediation, the following process is initiated:

Review of the Insurance Policy

The third-party neutral, the mediator, will want to read the title insurance policy that is in dispute. He or she can evaluate the clear meaning of the contract terms or determine that there is some ambiguity in the contract language. Both parties should state their opinion about the particular provisions that are at issue and why the case should be decided in their favor.

Review of Laws

The mediator will want to be familiar with the legal rules and constructions that may apply to the case. This may be based in state statutes, or it may be based in decisions reached by courts that establish precedent. Precedent can significantly impact title decision cases and other insurance policy cases more than in many other cases. The parties’ attorneys may take turns giving their arguments and why the court would likely rule in their favor. Another important aspect of the case to evaluate is the choice of law that is being used. If the parties contend that different state laws should apply, they should include this information in the pre-mediation brief.

Assessment of Strengths and Weaknesses

Once the mediator has a thorough understanding of the legal and practical issues at hand, he or she may be able to help guide the parties toward a solution. The mediator can listen to the strengths and weaknesses of each side and provide feedback about which way the court may rule. He or she can point out the risks of litigating such a claim, including the potential damages at stake.

Types of Social Security Cases Eligible for Mediation

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Mediation is an alternative form of dispute resolution in which parties meet with a third-party neutral, called the mediator. Many federal and state governmental agencies utilize the mediation process because it offers faster and less expensive ways to reach a decision in a case. There are several different types of Social Security cases that may be explored in mediation.

Claims Against Commissioner

If a Social Security claimant believes that the Social Security Commissioner denied his or her claim incorrectly or otherwise is in violation of Social Security rules, the commissioner may agree to conduct mediation with the party. This is often because both parties can benefit from mediation, including sparing them both the substantial expense, inconvenience and distraction of litigation. In these cases, the mediator may make suggestions regarding procedures that can be implemented to get the parties to reach an agreement. The mediator may meet with the parties separately in caucuses, as well as together in order to deliver proposals that can help bridge the gap between the parties.

Divorce Cases

For many individuals, the receipt of Social Security benefits is their largest source of income during their retirement years. As such, it can be a serious point of contention between spouses during divorce. The distribution of benefits often weighs against women during divorce. Current Social Security laws permit the lower-earning spouse to receive benefits on his or her spouse’s work record, provided that certain conditions are met. However, many women earn less than their spouses or have lost years of earnings due to raising children or making other contributions to the household. By working through mediation, the parties may be able to wind up with a more equitable solution between them to factor in the discrepancy in Social Security earnings.

Causes for Nursing Home Disputes

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When placing a loved one in a nursing home, their safety and comfort are the family’s primary concerns. There are far too many stories of nursing home abuse and neglect. Some of the following situations are some of the most common reasons for nursing home disputes.

High Staff/Patient Ratio

Nursing home abuse is more likely to occur when there is a high patient/staff ratio. If there are not enough aides, a patient’s care may suffer as a result. Additionally, the turnover rate for employees is another key indicator that there may be a problem. If people are constantly quitting their jobs, there is a reason why. Management may not listen to their concerns, or staff may be overworked. This may also cause staff to lack necessary training and experience if they have not been employed at the home for long. These statistical figures can help bolster the patient’s family’s case and make a jury truly question whether adequate care was being provided. As part of a solution reached in mediation or arbitration, changing training protocols or requiring a specific staff/patient ratio may be one unique way to help the parties resolve the dispute.

Maintenance Problems

In some instances, loved ones are not injured because of any abusive tactics of stressed employees. Instead, they may suffer because of lowered health standards. This can be problematic for patients who may suffer from weaker immune systems and who are more likely to suffer a serious injury after a fall. Loved ones may start to document maintenance issues, including fraying carpet, warped floors or broken HVAC systems. Providing such documentation to the mediator may help convince the nursing home that important changes are necessary in order to help protect the health and safety of the existing and future patients.